Holland v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia

KEVIN EUGENE HOLLAND
OPINION BY
v. Record No. 1320-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 21, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Barry A. Zweig, Assistant Public Defender,
for appellant.

Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Appellant was convicted in a jury trial of trespassing in

violation of Code § 18.2-119. On appeal, he contends the trial

court erred in failing to suppress a barment notice issued under

a policy authorizing police officers to act as agents for the

manager of a public housing complex. For the following reasons,

we affirm.

I.

In June 1995, the management of Loudoun House, a

federally-subsidized apartment complex, devised a strategy to

curb criminal activity and trespassing. The property manager

executed a power of attorney appointing as her agents all members

of the Leesburg Police Department and granting them the power to

issue barment notices to unauthorized individuals present on the

Loudoun House property. The power of attorney designated "each
and every sworn officer of the Leesburg Police Department as my

true and lawful attorneys-in-fact." The attorneys were

authorized to act for the property management agency as follows:
(1) To serve trespass notices to any
persons encountered on Loudoun House property
who are not on a lease and cannot demonstrate
a legitimate purpose for being on the
premises. The trespass notice shall forbid
the person served with it from returning to
the property of Loudoun House.
(2) To file criminal complaints for
trespass on Loudoun House property if persons
served with trespass notices return to the
premises.
(3) To testify on behalf of the
management of Loudoun House in any criminal
prosecutions arising out of the trespass
notices and complaints described above that
the officers are the "attorneys-in-fact" of
the National Housing Property Management
Company, and as such are authorized to issue
barment notices.

On June 5, 1996, Captain Christopher Jones, using the power

of attorney, issued appellant a barment notice signed by the

Loudoun House management. The notice stated that the management

had given the police permission to issue the barment, that

appellant was being notified that he was not permitted to be

present on the Loudoun House property "under any circumstances,"

and that if he returned to the property he was subject to arrest

for trespassing. Appellant signed the notice indicating he

understood what it meant.

On September 28, 1996, Officer Mike Buracker was conducting

a plainclothes patrol of the Loudoun House apartment complex when

he was advised that appellant was present on the premises in the

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area of building twelve. The officer went to that location and

saw appellant leaving building twelve with an open beer in his

hand. Buracker knew appellant was listed on a police print-out

of persons who had been barred from the property and arrested him

for trespassing in violation of Code § 18.2-119. 1

Appellant filed a motion to suppress the power of attorney

and barment evidence. The trial court denied the motion,

convicted appellant of trespassing, and imposed a fine of $1,000.
On April 1, 1997, subsequent to appellant's trial, the

Leesburg Town Council adopted a resolution supporting the

issuance of barment notices using the limited power of attorney.

The resolution stated that "the issuance of barment notices by

the town police in this manner has been a successful procedure in

discouraging criminal and drug related activity." The council

ratified the procedure and authorized it "to be utilized by the

town police to ensure the health, safety and welfare of all

citizens of the Town."

II.

Appellant contends the duties enumerated in the power of

attorney exceeded the scope of legitimate police authority and

thus the power of attorney had no effect. He argues that as a

1
"If any person without authority of law goes upon or remains
upon the lands, buildings or premises of another, or any portion
or area thereof, after having been forbidden to do so, either
orally or in writing, by the owner, lessee, custodian or other
person lawfully in charge thereof . . . he shall be guilty of a
Class 1 misdemeanor." Code § 18.2-119.

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result the Commonwealth failed to establish that Captain Jones

had the authority to issue the barment notice and therefore

failed to prove that appellant had effective notice that he was

barred from the property as required by Code § 18.2-119.

The question of whether a police officer may act as an agent

for a property owner, lessee, custodian or other person lawfully

in charge of property for the purpose of issuing barment notices

to people who "are unable to demonstrate a legitimate reason for

being on the property" is an issue of first impression in

Virginia. Additionally, the General Assembly has not addressed

this question, and no Virginia statute expressly authorizes or

prohibits this practice.
A review of the law of our sister states reveals that no

other state has considered this precise question. However,

several jurisdictions have approved similar or related practices

to combat the problem of criminal and drug-related activities of

non-residents in public housing. See Daniel v. City of Tampa, 38

F.3d 546 (11th Cir. 1994) (police enforcement of "trespass after

warning" statute upheld against constitutional challenge by

leafleteer); Daniel v. City of Tampa, 818 F. Supp. 1491, 1492
(M.D. Fla. 1993) (public housing complexes "have a serious

problem with drugs and other crimes . . . caused by people who do

not live in the public housing areas"); L.D.L. v. State, 569

So.2d 1310 (Fla. Dist. Ct. App. 1990) (acknowledging police

authority to issue "no trespass" warnings to unauthorized

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individuals on public housing complex property); Williams v.

Nagel, 643 N.E.2d 816 (Ill. 1994), cert. denied, 514 U.S. 1064

(1995) (police issued "barred notices" and gave names of those

barred to public housing management who determined whether to

place them on the "no trespass" list of people to be arrested for

trespassing if they returned to the property); People v. Kojac,

Nos. 7242/97, 98-188 (N.Y. Sup. Ct. Mar. 18, 1998) (describing

"trespass affidavit building" in which building management

authorized police to arrest anyone who entered without a

legitimate reason); State v. Newell, 639 N.E.2d 513 (Ohio Ct.
App. 1994) (noting off-duty police officers acted as agents for

public housing authority in issuing trespassing warnings); City

of Dayton v. Williams, No. 13686, 1994 WL 37263 (Ohio Ct. App.

Feb. 11, 1994) (describing public housing authority policy

whereby police officers issue trespass notices to unauthorized

individuals on the property and arrest those who previously

received warnings).

In Daniel v. City of Tampa, 38 F.3d 546 (11th Cir. 1994),
the Eleventh Circuit Court of Appeals tacitly approved a

procedure that closely resembled the one at issue in the instant

case. The public housing property in Tampa, under the control of

the Housing Authority, was "often used by non-residents as a

place to sell and use drugs." Id. at 548. As a result, the

Housing Authority limited property access to "residents, invited

guests of residents, and those conducting official business."

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Id. "Enforcement of this limited access policy [was]

accomplished through enforcement of Florida's trespass after

warning statute." Id. Under "a special agency agreement," the

Housing Authority authorized the Tampa Police Department "to

issue warnings to persons trespassing upon Housing Authority

property. Once an individual is issued a trespass warning, he is

placed on a list and is subject to arrest if found on Housing

Authority property again." Id.
After reviewing the procedure, the court found "the Tampa

police have virtually no discretion when enforcing the statute on

the Housing Authority property: any person who is not a lawful

resident of the property, an invited guest, or present on

official business, is subject to arrest after receiving a

warning." Id. at 551. The court upheld the "trespass after

warning" statute against vagueness and freedom of speech

challenges, holding that "enforcement of Florida's trespass after

warning statute on the property is a reasonable means of

combatting drug and crime problems on the property." Id.

Although the defendant in Daniel did not directly challenge the

authority of the police to issue warnings on behalf of the

property management, the court's acceptance of the policy as

"reasonable" is noteworthy.

In Virginia, the Dillon Rule of strict construction dictates

our determination of the powers of local governing bodies and of

the city police as the law enforcement arm of the local

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government. This rule provides as follows:
"[A] municipal corporation possesses and can
exercise the following powers, and no others:
First, those granted in express words;
Second, those necessarily or fairly implied
in or incident to the powers expressly
granted; Third, those essential to the
declared objects and purposes of the
corporation, not simply convenient, but
indispensable."

Commonwealth v. Rivera, 18 Va. App. 103, 108, 442 S.E.2d 410, 413

(1994) (quoting City of Winchester v. Redmond, 93 Va. 711, 714,

25 S.E. 1001, 1002 (1896)). "'The Dillon Rule is applicable to

determine in the first instance, from express words or by

implication, whether a power exists at all. If the power cannot

be found, the inquiry is at an end.'" Lawless v. County of

Chesterfield, 21 Va. App. 495, 499, 465 S.E.2d 153, 155 (1995)

(quoting Commonwealth v. County Bd. of Arlington County, 217 Va.

558, 575, 232 S.E.2d 30, 41 (1977)).

Under Code § 15.1-839, a municipal corporation has general

powers to promote the welfare of the people. 2 Although the
2
"A municipal corporation shall have and may exercise all
powers which it now has or which may hereafter be conferred upon
or delegated to it under the Constitution and laws of the
Commonwealth and all other powers pertinent to the conduct of the
affairs and functions of the municipal government, the exercise
of which is not expressly prohibited by the Constitution and the
general laws of the Commonwealth, and which are necessary or
desirable to secure and promote the general welfare of the
inhabitants of the municipality and the safety, health, peace,
good order, comfort, convenience, morals, trade, commerce and
industry of the municipality and the inhabitants thereof, and the
enumeration of specific powers shall not be construed or held to
be exclusive or as a limitation upon any general grant of power,
but shall be construed and held to be in addition to any general
grant of power." Code § 15.1-839 (superseded by Code
§ 15.2-1102, effective December 1, 1997).

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Leesburg Town Council ratified the barment process at issue,

appellant's arrest and conviction pre-dated the town's

resolution. 3 At the time of appellant's arrest, police officers

were acting at the request of the property manager for ongoing

police assistance in prevention of crime in a public housing

complex. To facilitate this assistance, the Loudoun House

management conferred on the police authority to bar unauthorized

individuals from the property. Therefore, we must address

whether the police compliance with the property manager's request

and their acceptance of this authority were within the scope of

power granted to police or necessarily implied in Code

§ 15.1-138.
Code § 15.1-138, the statute in effect at the time of

appellant's arrest, 4 expressly granted police officers the
3
In light of our holding that the barment procedure was
within the scope of powers granted to police and the fact that
the resolution had not been adopted at the time of appellant's
arrest, we need not examine whether the resolution ratifying the
procedure was within the authority of the Town of Leesburg.
4
Code § 15.1-138 was repealed and replaced by the following
section:

Powers and duties of police force [Effective
December 1, 1997]. -- A. The police force of
a locality is hereby invested with all the
power and authority which formerly belonged
to the office of constable at common law and
is responsible for the prevention and
detection of crime, the apprehension of
criminals, the safeguard of life and
property, the preservation of peace and the
enforcement of state and local laws,
regulations, and ordinances. . . .

Code § 15.2-1704.

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following powers:
The officers and privates constituting the
police force of counties, cities and towns of
the Commonwealth are hereby invested with all
the power and authority which formerly
belonged to the office of constable at common
law in taking cognizance of, and in enforcing
the criminal laws of the Commonwealth and the
ordinances and regulations of the county,
city or town, respectively, for which they
are appointed or elected. Each policeman
shall endeavor to prevent the commission
within the county, city or town of offenses
against the law of the Commonwealth and
against the ordinances and regulations of the
county, city or town; shall observe and
enforce all such laws, ordinances and
regulations; shall detect and arrest
offenders against the same; shall preserve
the good order of the county, city or town;
and shall secure the inhabitants thereof from
violence and the property therein from
injury.

The plain language of the statute granted police officers the

power to prevent and detect crime, to arrest criminals, and to

protect life and property. Because Code § 15.1-138 did not

explicitly address police authority to issue barment notices,

under a Dillon Rule analysis, we must determine whether this

power was "necessarily or fairly implied in or incident to" the

powers expressly granted by the statute.

"We look to the purpose and objective of [Code § 15.1-138]

in considering whether this authority necessarily is implied from

the powers expressly granted by the statute." City of Chesapeake

v. Gardner Enters., Inc., 253 Va. 243, 247, 482 S.E.2d 812, 815

(1997). "The statute must be given a rational interpretation

consistent with its purposes, and not one which will

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substantially defeat its objectives." Id. One of the objectives

of Code § 15.1-138 is the detection and prevention of illegal

activities, including drug-related crimes. Police officers are

also empowered to arrest criminals and are charged with the

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responsibility of protecting life and property. Necessarily

implied in these duties is the power of the police to respond to

requests for assistance from private citizens.

It is undisputed that the police had the power to accept the

property manager's authority to bar a specified individual from

the property. This power furthered the objectives of the police

to prevent crime, to protect life and property, and to preserve

the peace, and it was necessarily implied in the powers expressly

granted to police by Code § 15.1-138.
In the instant barment procedure, the request for

assistance, as well as the police response, was ongoing. Rather

than respond to separate requests for service of a barment notice

upon each unauthorized individual, the property manager's limited

power of attorney empowered police to bar any unauthorized

individual from the property. This practice allowed police to

identify and remove individuals who were on the property without

legitimate purpose, thus preventing crime, protecting property,

and preserving the peace.

For the foregoing reasons, we hold that the limited

authority to grant barment notices was a necessary and expedient

means of crime prevention and was "fairly implied in or incident

to the powers expressly granted" to police by Code § 15.1-138.

Consequently, the officers did not act outside their statutory

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authority by issuing a notice barring appellant from Loudoun

House, and the conviction is affirmed. 5

Affirmed.

5
Appellant also contends the issuance of a barment notice is
a civil matter over which police authority is statutorily
prohibited. See Code § 15.1-138 ("policemen shall have no power
or authority in civil matters"). This contention misinterprets
the statute. Although barment, a private action grounded in the
law of property rights, is a civil matter, see Black's Law
Dictionary 246 (6th ed. 1990) (defining civil laws as "concerned
with . . . private rights and remedies"), Code § 15.1-138 does
not prohibit private grants of authority over civil matters, and
it is the validity of such a grant of power that is in question
here.

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